Valerie Hinton, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (National Geospatial-Intelligence Agency), Agency.

Equal Employment Opportunity CommissionFeb 4, 2009
0120072099 (E.E.O.C. Feb. 4, 2009)

0120072099

02-04-2009

Valerie Hinton, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (National Geospatial-Intelligence Agency), Agency.


Valerie Hinton,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

(National Geospatial-Intelligence Agency),

Agency.

Appeal No. 0120072099

Agency No. PV-05W-40

DECISION

Complainant filed an appeal from the agency's February 12, 2007 final

decision concerning her equal employment opportunity (EEO) complaint

alleging employment discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,

and the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq.

For the following reasons, the Commission AFFIRMS the agency's final

decision.

BACKGROUND

At the time of events giving rise to this complaint, complainant

worked as an Aeronautical Analyst at the agency's Aeronautical Branch

facility in Arnold, Missouri. Complainant had been hired by the agency

on November 14, 2004, and under the terms of her position, was required

to fulfill a two-year probationary period. On November 29, 2004, during

a meeting with other employees,1 complainant questioned the rate of pay

she was receiving compared to that being paid to White male employees.

Thereafter, complainant claims she was subjected to disparate treatment

for having expressed her opposition to the pay structure. On December

1, 2006, complainant filed an EEO complaint alleging that she was

discriminated against on the bases of race (African-American), sex

(female), and in reprisal for prior protected EEO activity under Title

VII of the Civil Rights Act of 1964 when:

1. On May 19, 2005, complainant determined that her work had been

deleted;

2. Due to misinformation from management, complainant was not

considered for training opportunities (tuition assistance program);

3. On July 11, 2005, complainant's request to transfer to another

unit in NGA was denied;

4. On July 27, 2005, S1 and S2 informed complainant that she had

been targeted by management for questioning her salary compared to male

employees;

5. On August 2, 2005, complainant was told by management that her

training progress would be judged by subjective standards; and

6. Complainant was terminated on September 8, 2005, during probation,

for poor performance and conduct.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �

1614.110(b).

In its decision, the agency found that with respect to claim (1),

complainant could not identify the person responsible for deleting

her work. Accordingly, the agency found that complainant did not show

that her work was deleted by the agency because of discrimination on

any basis.

With respect to claim (2), the agency found that while complainant was

initially informed incorrectly, she was provided with accurate information

on June 16, 2005. Complainant did not apply for tuition assistance,

the agency found. Accordingly, the agency found that complainant did

not show sex, race, or reprisal discrimination occurred as alleged with

respect to claim (2).

Regarding claim (3) (transfer to another station), the agency found

that complainant's fourth level supervisor (S2) informed complainant's

immediate supervisor that complainant's request for a transfer

was not approved because complainant was only a marginal performer.

Complainant's second line supervisor (S1) indicated that complainant was

not qualified for the job to which she wished to be transferred because

did not possess a college degree or substantial experience. The agency

noted that complainant did not rebut the agency's non-discriminatory

reasons for its actions. The agency concluded that discrimination did

not motivate the agency's actions described in claim (3).

In claim (4), complainant claimed that she felt she was treated

differently by the agency after she questioned her salary. Specifically,

complainant questioned why White males, (and in particular, a White male

employee with no college degree), were brought in at a higher salary than

she was being paid.2 Agency officials (S1 and S2) stated that complainant

raised her questions regarding pay during a meeting and that complainant

herself expressed to management that she felt targeted thereafter.

S1 and S2 denied targeting complainant for harassment because of her

statements regarding pay. The agency found that complainant did not

rebut the agency's explanation.

Regarding claim (5), the agency found that complainant did not identify

any employees, not in her protected classes, who had different performance

standards than she did during training. Rather, the agency found that

complainant was provided with the same training and same evaluation

procedures that all new hires were given. The agency found no evidence

of complainant's claim that other hires were given information that she

was not given.

The agency considered the incidents described in claims (1) through (5)

as an overall claim of harassment and found that assuming the incidents

occurred as alleged, taken together they were not so severe or pervasive

that they rose to the level of harassment based on sex, race or reprisal

for prior EEO activity.

Regarding complainant's removal claim (6), the agency considered

the evidence of several of complainant's trainers together with the

statements of her supervisors. Three trainers reported that complainant

was a quick learner and that her work was satisfactory. However, S1

found that complainant did not take criticism well, blamed others for

her own mistakes, was rude to other employees, and displayed hostility

towards others at work. The agency noted that employees may be removed

for unacceptable conduct or poor performance during their probationary

period. The agency cited a number of instances where complainant

displayed poor conduct during her probationary period that included

resistance to instruction and refusal to take responsibility for mistakes.

The agency found that complainant did not show that the agency's reasons

for terminating her were a pretext to mask discrimination.

The agency's final decision concluded that complainant failed to prove

that she was subjected to sex, race or reprisal discrimination as

alleged.

On appeal, complainant states, among other arguments, that the opinions

of her trainers are at odds with the statements of S1 and S2 concerning

her performance and that standards for production, which her work would

have met, were set after she was terminated. Complainant notes that

after she questioned her pay, she was treated differently, including

being treated differently by the trainers.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

To prevail in a disparate treatment claim such as this, complainant must

satisfy the three-part evidentiary scheme fashioned by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant

must initially establish a prima facie case by demonstrating that he or

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination. Shapiro v. Social Security Admin.,

EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal

claim, and in accordance with the burdens set forth in McDonnell

Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), a complainant may establish a prima facie case of

reprisal by showing that: (1) he or she engaged in a protected activity;

(2) the agency was aware of the protected activity; (3) subsequently,

he or she was subjected to adverse treatment by the agency; and (4) a

nexus exists between the protected activity and the adverse treatment.

Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340

(September 25, 2000).

In the instant case, we find that complainant has not shown that

the non-discriminatory explanations provided by the agency for its

actions were pretext and that the agency was motivated by sex, race or

by reprisal. We view, as did the agency, complainant's claim as an

overall claim of harassment and also consider claim (6) (termination)

as a separate claim.

With respect to claim (1), (work deleted from computer) we find nothing

in the record indicates that complainant's work was deleted from her

computer as a result of actions taken by the agency. We further find

that the agency responded appropriately to complainant's allegations in

light of the absence of any evidence that her computer's security had

been compromised.

Regarding claim (2) (tuition assistance program), we note there is no

dispute between complainant and the agency regarding the facts of this

claim and find that the agency's failure to provide complainant with

accurate information was not shown to be discriminatory. We find no

evidence showing that complainant's sex, race or prior EEO activity

play any role in the agency's initial misrepresentations to complainant

regarding her eligibility for tuition assistance and agency-funded

training opportunities. According to the agency, the error was due to

the fact that her supervisor did not know that complainant's previous

federal experience would qualify her for tuition assistance. We find

the agency's actions were not shown to be discriminatory.

In claim (3), we find that complainant has not identified any similarly

situated employees who were granted a transfer such as the one complainant

requested, under similar circumstances. Complainant's supervisors cited

complainant's performance as motivating their denial of her request

and even complainant's trainers questioned complainant's desire to be

transferred to a position where she would require new training after only

recently being trained in her current position. While complainant argues

that her performance was satisfactory, we find that complainant has not

shown that the agency's decision to deny her transfer request was based

on her protected bases. Further, complainant has not presented persuasive

evidence to show the agency's stated reasons were unworthy of belief.

Turning to claim (4), we find that this claim, by itself, does not

allege a specific harm that complainant suffered (being "targeted"

by management) apart from alleging an element of complainant's overall

claim of harassment. We therefore find no discrimination with respect

to this incident.

Claim (5) describes an incident that from complainant's point of view,

added to the hostile environment she endured during her tenure with the

agency. However, we find that she was not harmed by being informed of

the subjective standards by which her work would be evaluated. Any harm

would occur after complainant had received an evaluation she believed

to be discriminatory based upon the subjective standards. Even so,

we find that complainant has not alleged, nor presented evidence to

show that other employees in her position were provided with objective

standards during the time frame that she was evaluated. Accordingly,

we find that this incident does not describe an actionable claim apart

from claim (6), wherein complainant was ultimately removed from her

position based on her performance and conduct.

In claim (6), complainant states that she was terminated for reasons

that are not worthy of belief. Specifically, complainant states that

her production levels were comparable to other employees not in her

protected groups, and that she had received no notice from the agency of

any conduct issues prior to the time she was removed from her position.

We observe that complainant had not completed a two-year probationary

period at the time she was removed from her position. Further, we

find that statements from complainant's trainers indicate that she

progressed at a satisfactory rate. One of complainant's supervisors

acknowledges that when pressed, complainant could perform her work at an

acceptable rate. Nevertheless, we find that complainant has not shown

that the incidents of unacceptable conduct described by S1 did not occur,

nor has complainant shown that other employees with her performance and

conduct issues were not also terminated. We note that S2 states that

two of complainant's coworkers (E1, a White female employee, and E2, a

White male) were also not retained by the agency after similarly failing

to perform at an acceptable level. We find the evidence inadequate to

show that complainant was removed from her position based on her sex,

race, or in reprisal for her prior EEO activity.

We consider claim (6) alone, and together with complainant's overall

claim of harassment claims (1) through (6)). We find that complainant

has not shown that she was subjected to unwelcome behavior based on her

race, sex, or reprisal that was either so severe or pervasive so as to

alter the terms and conditions of her work.

We AFFIRM the agency's final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the

policies, practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. In the absence of a legible postmark, the request

to reconsider shall be deemed timely filed if it is received by mail

within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as the

defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 4, 2009

__________________

Date

1 Complainant claims that no more than seven employees were present

when she openly questioned her pay and expressed her belief that the pay

structure was discriminatory. S1, complainant's fourth level supervisor,

stated that approximately 30 employees were present.

2 Complainant did not allege that she was paid less than male employees

performing similar work as a separate claim of the instant complaint.

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0120072099

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 77960

Washington, D.C. 20013

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0120072099